Long before Liskula Cohen's case brought online anonymity into the mainstream press, New York courts were already struggling with the law surrounding the outing of anonymous Internet speakers. For example, back in October 2007, a court in New York County denied a school board member's request to unmask "Orthomom," an anonymous blogger who had published critical comments about her. In June 2008, Judge Rory Bellantoni of Westchester County ruled that ex-Congressman Richard Ottinger and his wife could obtain the identity of an anonymous commenter to a forum on LoHud.com, an online news site operated by The Journal News that covers New York's Lower Hudson Valley.
In a recent development in the latter case, last month another judge in Westchester county dismissed the Ottingers' subsequent defamation lawsuit against Stuart Tiekert, the commenter unmasked in the previous proceeding. In his ruling, Judge Richard Liebowitz invoked New York's anti-SLAPP law and ruled that the Ottingers "failed to demonstrate that their action has a substantial basis in fact or law."
How can this be? Didn't the Ottingers have to make some kind of legal and factual showing in order to get Mr. Tiekert's identity in the first place? In fact, they did. Judge Bellantoni's ruling in 2008 relied expressly on Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001), and Doe v. Cahill, 884 A.2d 451 (Del. 2005), two opinions which provide a strong measure of protection for anonymous speech. And while the details of his reasoning weren't made entirely clear, Judge Bellantoni concluded that "[t]he complaint and all the information provided to the court establishes that [the Ottingers] have set forth a prima facie cause of action against the fictitiously-named defendants." Slip op. at 5. So what gives? How did the Ottingers fail to come forward with "a substantial basis in fact or law"? Did Judge Liebowitz simply second-guess his former colleague's decision? The brevity and opacity of the court's recent ruling make it difficult to say for sure, but there's at least one reasonable explanation for these seemingly disparate outcomes.
In his decision, Judge Bellantoni excused the Ottingers from making any showing of actual malice — in other words, that the anonymous commenter acted with knowledge of, or reckless disregard for, the falsity of his statements. In doing so, the court followed a respectable line of cases finding that it would be unfair to require would-be plaintiffs to make such a showing at the threshold of a lawsuit, without even knowing the identity of their adversary. See, e.g., Mobilisa v. Doe, 170 P.3d 712, 720 (Ariz. Ct. App. 2007) (requiring prima facie evidence "on all of the elements within the requesting party's control — in other words, all elements not dependent upon knowing the identity of the anonymous speaker"); Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231, 245 n.12 (Cal. Ct. App. 2008) (explaining that "[c]ourts have obviated [the difficulty of establishing certain elements of a claim without knowing the identity of the poster] by insisting on a preliminary showing of only those facts accessible to the plaintiff"); Cahill, 884 A.2d at 464 (explaining that "[w]e do NOT hold the public figure defamation plaintiff is required to produce evidence [of actual malice]").
In contrast, Judge Liebowitz was obligated to consider actual malice when considering Mr. Tiekert's anti-SLAPP motion. N.Y. Civ. Rights Law §§ 76-a(2) provides that a plaintiff in a SLAPP suit may only recover damages if it is "established by clear and convincing evidence that any communication which gives rise to the action was made with knowledge of its falsity or with reckless disregard to whether it was false." Because Judge Liebowitz found that the Ottingers' case fit the definition of a SLAPP — it was "brought by a public applicant or permittee" and was materially related to Tiekert's efforts to "report on, comment on, rule on, challenge or oppose" an application or permission — he had to look closely at their evidence of actual malice. There is nothing surprising about doing so at the dispositive motion phase of a defamation lawsuit.
Sadly, Judge Liebowitz's opinion doesn't explain in any detail why he found the Ottingers' evidence of actual malice lacking, or indeed whether this was in fact the ground for his dismissal. We can speculate that the court deemed Mr. Tiekert at least not reckless because he relied on statements made by a neighborhood activist at a televised public meeting, but in the end this is just a guess. Judge Liebowitz missed an excellent opportunity to provide some guidance to Internet speakers on what amount of investigation and verification they need to do, if any, before repeating the public statements of others.
(Photo courtesy of Flickr user Koen Cobbaert, licensed under a CC Attribution-Noncommercial-Share Alike 2.0 Generic license.)